Sealing Marijuana Convictions in The Golden State | Interview With ADA Nikesh Patel

February 12, 2018

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Cannabis legalization in the Golden State is a hot topic. When you take a look at the financial projections of the cannabis industry in California it’s not too surprising that so many are eager to jump aboard. The “Golden State” may very well become the “Green State” given the predicted tax revenue.

Business Insider has estimated that the cannabis revenue of California alone will be approximately $3.7 billion in 2018 and grow further to $5 billion in 2019 (1).

The numbers are beyond promising, but as caring and active human beings we must not forget the other ways that cannabis legalization is moving us forward as a society. It has much more than a financial impact. San Francisco is going beyond business and focusing an initiative on helping those whose lives were affected by the painstakingly long and very costly War on Drugs, and the accompanying marijuana prohibition.

The new measure, as San Francisco Assistant District Attorney Nikesh Patel describes it, “is to both dismiss standalone marijuana convictions that are eligible under Prop 64 and review felony convictions eligible under Prop 64.”

Proposition 64, which passed on Presidential Election Night 2016, authorizes a multitude of cannabis-related legal actions, one of which is the “resentencing and destruction of records for prior marijuana convictions.”

Between 1915 and 2016, almost 2.8 million arrests were made in California for cannabis (3).

The way San Francisco is currently approaching this, rather than entirely expunging records, the cases will be dismissed and the records will be sealed.

“There’s two steps to this process.” Patel explains, “The first step deals with standalone marijuana convictions. For those convictions, we looked back at all cases where individuals had that standalone conviction going back to 1975 and determined how many people would be affected by this policy.”

Based on the cases they found, the District Attorney’s Office decided to dismiss and seal those records on misdemeanor charges. With misdemeanor charges, all that must be done by the DA is identifying the eligibility of the case to be dismissed. No further action, such as giving a detailed look into every previous conviction, is needed.

When it comes to felonies, there’s a different path, depending on a variety of situations.

In contrast to the approach to dismissing misdemeanor cases, each felony case is looked at individually and specifically. Felonies that are eligible for either resentencing or dismissing under Prop 64, will be reviewed, recalled and be determined on whether the case itself is eligible. There are some excluding criteria which would not allow marijuana felonies to be dismissed and sealed. Excluding criteria under Proposition 64 include: a marijuana charge that goes along with a separate and oftentimes violent crime.

These excluding criteria include items such as murder, rape (registered sex offender), whether the crimes were committed across state lines and if the crimes involved selling marijuana to minors (3).

Nikesh mentioned that while the process of dismissing misdemeanor and some felony charges related to marijuana possession is a step in the right direction away from the failures of the drug war, not all cases are eligible for dismissal with Proposition 64.

“The stain of a conviction is hard to wash away,” said Patel.

“Even a misdemeanor impacts your ability to get housing, to get employment and benefits. For too long, certain communities, specifically communities of color, have been affected by The War on Drugs.”

“There’s a very real impact that not having access to employment creates. Also, there are studies that very clearly show if individuals have access to employment opportunities, it actually reduces recidivism. So, it’s in the interest of public safety in general for people to have access to employment opportunities. One of the problems with having a conviction on your record, especially a felony, is that it becomes incredibly difficult to get a job.”

Following the passing of Prop 64, Patel feels that the dismissal of the many nonviolent misdemeanor convictions as a result of the drug war was “the right thing to do. As opposed to making each previous offender apply for dismissal of their cases and hiring an attorney, the DA’s office is “retroactively and proactively” doing this for the people.

“Slightly over 3,000 misdemeanor cases will be dismissed and sealed, including all eligible cases going back to 1975,” Nikesh told. However, Nikesh also explained that if someone has a conviction that’s eligible yet predates that year, they’ll most likely dismiss those charges too.

While almost 40 million people live in California, the National Drug Policy indicates that only 4,885 people have petitioned state courts to have their convictions dismissed. Over 75% of San Francisco voted to legalize cannabis along with these dismissal measures, indicating the level of support this measure garnered from the general public supports.

With Seattle implementing a similar process to seal previous marijuana convictions, it’ll be worth keeping an eye on the progress of this type of retroactive initiative throughout the U.S. as decriminalization of marijuaa continues.

For more information on Proposition 64 and the retroactive dismissing of cases in San Francisco, go here.

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